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Death Penalty Remains Big Issue in California

The Golden State doesn’t execute many people, but capital punishment can be the decisive issue when the state elects an attorney general.

September 8, 2010

California’s next attorney general will have a full plate. He or she will have to deal with a federal court challenge on prison overcrowding, a continuing battle over gay marriage, how to proceed if a marijuana-legalization ballot measure passes, and whether to follow other states in cracking down on illegal immigration and implementing, or challenging, the newly passed health care bill. And all of this is in addition to the ordinary workload of judicial appeals, general litigation, and environmental and consumer protection cases.

Despite the breadth of this portfolio, California voters have historically focused on one issue above all others when voting for attorney general — namely, how tough the candidate is on crime, even though it’s local DAs, rather than the AG, who are actually responsible for criminal prosecutions.

And despite California’s reputation as a liberal state, its voters, all other things equal, like their AGs to be as hard-line on crime as possible, particularly in how they feel about the death penalty. In a July 2010 Field Poll, 70 percent of Californians said they support the legality of the death penalty. So any candidate seen as soft on the issue starts in a hole.

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That’s why in this historically Democratic state, the Democratic candidate for AG, a twice-elected San Francisco district attorney, Kamala Harris, is widely thought to face an uphill battle in November against Los Angeles DA Steve Cooley. In contrast to Cooley, who is an unambiguous supporter of the death penalty, Harris personally opposes capital punishment, typically favoring life without parole.

Harris has pledged to carry out capital punishment whenever her office handles a death row appeal, the same stance as current Democratic AG (and gubernatorial nominee) Jerry Brown, who also personally opposes the death penalty. But Harris’ reputation for hesitancy in seeking capital punishment could be one of the biggest challenges she’ll face on the campaign trail.

“In many states, especially California, the death penalty figures less as a real tool of criminal justice or crime control and more of a symbolic statement about whether someone identifies the fears of ordinary citizens about crime,” says Jonathan Simon, a law professor at the University of California (Berkeley).

Californians’ support for the death penalty, a punishment that hangs over roughly 650 death row inmates at San Quentin, has fluctuated over time. It became an especially heated issue in the 1970s, when Brown, then serving as governor, vetoed death penalty legislation, only to be overridden by the legislature. He then appointed several death penalty opponents to the state Supreme Court. The voters retaliated by ousting three of them.

Public support for capital punishment peaked above 80 percent in the 1980s and fell to the low 60s around 2000, when instances of DNA evidence clearing death row prisoners made national news. But even then, support remained well over a majority, making it hard for statewide candidates in California to be successful if they opposed it.

And Harris has not only expressed personal opposition to the death penalty, she also decided against seeking it in two high-profile cases during her tenure as DA. Both cases drew vocal opposition from law-enforcement and victims’ rights groups. Many of the same critics are actively working to defeat Harris in the election.

The one public poll released so far in the race — a Field Poll taken in July — shows Cooley leading Harris, 37 percent-34 percent, with 29 percent undecided. Cooley’s lead is within the poll’s margin of error. But most experts agree that her death penalty record is drag on her electoral chances, and probably enough of a political problem to make her the underdog in the contest.

If the death penalty becomes a major issue and if it feeds into the broader narrative that a DA from liberal San Francisco is bound to be soft on crime, then it will overshadow Harris’ otherwise historic candidacy.

If she wins, Harris would be the first woman, the first African American and the first Asian American to serve as California’s AG. (Her mother is a doctor who emigrated from India, and her father, of Jamaican heritage, is an emeritus economics professor at Stanford University.) Harris started out as a prosecutor in Alameda County (Oakland) before moving to San Francisco.

Cooley has made less of a public splash in his career, but there’s also less in his background to irk California voters. Cooley, who is white and the son of an FBI agent, has won the nonpartisan post of DA in Los Angeles County three times, after spending most of his career there as a prosecutor. He also served nearly six years as a reserve officer with the Los Angeles Police Department.

Both candidates are touting their achievements in getting convictions. Harris, says campaign manager Brian Brokaw, has “made a career of looking murderers and rapists in the eye and made sure they spend every last day on earth in prison,” but the two candidates’ emphasis on specific issues reveals notable differences.

Harris’ website highlights issues of special interest to liberals, including her record as “an early and ardent supporter” of same-sex marriage, her focus on threats from climate change and her efforts to establish special units for hate crimes, juvenile gun offenses, “environmental justice,” elder abuse and investment fraud.

If Harris paints herself as a fresh-thinking innovator, Cooley offers a more meat-and-potatoes vision. He’s seeking to paint Harris’ agenda as outside the California mainstream.

Cooley is considered a moderate Republican. In fact, he survived repeated attacks from the right during the primary, including criticism of his efforts to rein in use of the state’s “three-strikes” sentencing law that targets repeat offenders. But he also opposes San Francisco’s “sanctuary city” policy that generally shields illegal immigrants not accused of crimes, and he opposed Brown’s decision not to defend the state’s anti-gay marriage initiative in court.

The immigration issue in particular could also be a drag for Harris, says John J. Pitney, Jr., a politics professor at Claremont McKenna College. “Even though the issue has dubious relevance to the job of attorney general, it will have an impact.”

Californians’ support for the death penalty is far from monolithic. The July Field Poll found that, though a clear majority wants the death penalty to be available, 42 percent of respondents would choose life in prison without parole for a murder, slightly more than the 41 percent who would choose the death penalty. Another 13 percent said it depends on the situation.

“In light of the state's financial problems, the fact that life without the possibility of parole would save the state tens of millions of dollars compared to the death penalty has had some resonance,” said Charles E. Patterson, a member of the steering committee of the American Bar Association’s Death Penalty Representation Project.

Cruz Reynoso, one of the Supreme Court justices ousted by voters in 1986 for opposing the death penalty, says that if Harris can keep the focus on the non-criminal aspects of the AG’s work, “her chances go up.”

Still, given the consistent polling trend, Cooley’s support for the death penalty can help him, says Field Poll director Mark DiCamillo. “If I were Cooley, I’d make it a factor.”